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The Departments of Defense and Justice announced on 13 November “forum decisions” for ten detainees at Guantanamo Bay whose cases were previously charged in military commissions, including five detainees accused of conspiring to commit the Sept. 11, 2001 terror attacks and a detainee accused of orchestrating the attack on the USS Cole.

The Attorney General, in consultation with the Secretary of Defense, has determined that the United States government will pursue a prosecution in federal court against five detainees who are currently charged in military commissions with conspiring to commit the Sept. 11, 2001 terror attacks, which killed nearly 3,000 individuals. These detainees are

Khalid Sheikh Mohammed

Walid Muhammad Salih Mubarak Bin ‘Attash

Ramzi Binalshibh

Ali Abdul Aziz Ali and

Mustafa Ahmed Adam al Hawsawi

The Department of Justice intends to pursue a prosecution against these five individuals in the Southern District of New York as soon as possible. Prosecution of these detainees will be co-managed by teams from the Southern District of New York and the Eastern District of Virginia. These detainees will be transferred to the United States for trial after all legal requirements, including a 45-day notice and report to Congress, are satisfied, and consultations with state and local authorities have been completed. The detainees will be housed in a federal detention facility in New York, which includes maximum security units that have securely held terrorism suspects in the past. Once federal charges are brought against these detainees, military commission charges now pending against them will be withdrawn.

In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July. Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee.

Emptywheel has a very valid remark, pointing out that what we could see in the near future is material support charges going to federal courts, as they can’t be seen as traditional violations of the laws of war. See also the earlier remark of Assistant Attorney General David Kris said when testifying before Congress regarding Military Commissions.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

The actual transfer of the detainees from Guantanamo to New York isn’t expected to happen for many more weeks because formal charges have not been filed against most of them. Some experts say the actual trial may not begin until 2011 or even 2012.

“I would say a minimum of two years,” said Mary Jo White, a former U.S. attorney in the Southern District of New York, noting that the pretrial discovery of top-secret material would be the reason no one is likely to hear opening arguments for a long time.

But the five have earlier indicated their desire to plead guilty to capital charges so they can be executed, which would speed up the process. Such a plea would speed up the process considerably. On the other hand, if the Supreme Court is going to grant cert to Humanitarian Law Project vs Holder, which deals with the material offence to terrorism clause, things could be delayed considerably.

Ghailani’s court date is scheduled for September 2010; I think it’s safe to say that we won’t see a KSM trial before the autumn of 2011 the earliest.

Issue of self-representationThree of the Sept. 11 defendants, including Mohammed, represented themselves before the military tribunal, but it is unclear what strategy they will adopt in federal court. When the case was removed from the military system Friday, a military judge was still considering whether two of the defendants, Ramzi Binalshibh and Mustafa Ahmed al-Hawsawi, were mentally competent to represent themselves, despite the objections of their military counsel. The issue of self-representation will have to be resolved again in federal court, but for all five defendants. And there are likely to be lengthy proceedings to determine whether the defendants are fit to represent themselves.

As indigent defendants, the five are entitled to a federal public defender and one or more “learned counsel,” or lawyers with significant experience in death penalty cases, because the men are likely to face capital charges. But they have a constitutional right to act as their own attorneys. If they do so, they will still be assigned shadow or advisory counsel with security clearances because Mohammed and the other defendants will not have the right to review the classified evidence.

At the press conference the AG said it will be a trial “like other terrorist trials. Open to the world, with some closed sessions to present classified information.”

Another journalist asked one of the key questions about the conduct of KSM’s trial in a civilian court: whether or not he would be able to enter evidence of his torture into the trial. Holder basically answered–though he didn’t say it explicitly–that the charges and the prosecutions evidence will be designed such that the evidence of KSM’s torture will not be directly relevant. Holder:

Well, I think the question … among the questions that have to be asked in that regard is relevance. How relevant were those statements? Will those statements be used? I don’t know what the defense will try to do–it’s hard for me to speculate at this point, so it’s hard to know exactly what our response will be. But I’m quite confident on the basis of the evidence that we will be able to present, some of which I said has not been even publicly discussed before that we will be successful in our attempts to convict those men.

The rush for plea dealsPro publica reports that federal and military prosecutors are racing each other to strike plea deals with at least a dozen additional Guantanamo detainees whose testimony could be used against some of the most notorious prisoners. Some prosecutors reached out to defense attorneys as early as six weeks ago, but a scramble for plea deals intensified in the last 10 days, according to numerous defense attorneys who have been approached by federal and military prosecutors.

One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.

At least 5 cases to proceed at the Military CommissionsThe Attorney General has also determined, in consultation with the Secretary, that the prosecutions of five other Guantanamo Bay detainees who were charged in military commissions may be resumed in that forum. Contrary to the five detainees who will be tried at a federal court, these five detainees have always denied all charges agains them. In his speech Eric Holder had specified only that “a military commission for al-Nashiri is appropriate, given that the Cole bombing occurred in another country and its victims were all military”. The five detainees are:

Abd al-Rahim al-Nashiri. Nashiri’s lawyer has already indicated they are going to contest the venue of the trial pointing out that the Cole bombing was first investigated as a criminal case, so the only reason (she speculated) why the government would be trying him in a military commission is because they don’t have the evidence to convict him in a civilian court.

A sixth detainee, Mohammed Kamin of Afghanistan, has a pre-trial hearing set for Wednesday. Kamin is accused of a single charge, providing material support for terror, for allegedly supporting al Qaida and planting mines in Afghanistan.

Seven detainees have had charges sworn out against them, but those charges have not yet been approved by Crawford, the Pentagon so-called convening authority. Until that step is taken, they cannot go before a military judge for arraignment and eventual trial.

Those detainees are:

Mohamed Hashim, accused of spying in Afghanistan for al Qaida;

Obaidullah of Afghanistan, charged with possessing anti-tank mines in Afghanistan;

Tarek Mahmoud El Sawah of Egypt, charged with being an al Qaida trainer;

Jabran Said Bin al Qahtani of Saudi , accused of undergoing al Qaida training and plotting to plant road side charges in Afghanistan

Sufyian Barhoumi of Algeria, charged in the same conspiracy as Qahtani.

Ghassan Abdullah al Sharbi of Algeria, charged in the same conspiracy as Qahtani

No decision has been taken of where Abu Zubaydah will be tried. It was also not immediately clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.

As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)? And (2) To what armed conflict are these offenses incident?

Republicans worriedJohn Yoo is really worried about the federal trial:

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The administration has already sent one Guantanamo detainee, Ahmed Ghailani, to New York to face trial.

Greg Craig announces resignation on same day as Holder statementIn what is surely directly related news, White House councel Greg Craig announced his resignation hours before Holder made his announcement. Craig also oversaw the president’s revamping of U.S. policy on terrorism interrogations and detentions, including a ban on torture, and was at the center of administration moves to release many documents relating to the treatment of terror suspects under the Bush administration. He also was instrumental in the White House’s decision to resist the release of photos of abuse of detainees overseas by U.S. personnel.